Toma & Doyle (No 2)
[2023] FedCFamC1F 477
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Toma & Doyle (No 2) [2023] FedCFamC1F 477
File number(s): SYC 2425 of 2020 Judgment of: STRUM J Date of judgment: 16 June 2023 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – JOINDER – Where the wife seeks to join 15 further respondents – s 90AE and s 90AF of the Family Law Act 1975 (Cth) (“Act”) – Discussion of r 3.01 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – Whether third parties’ rights may be directly affected – Whether participation necessary – Whether s 90AE and s 90AF may be invoked after s 79 proceedings completed – Joinder of one further respondent ordered – Joinder of other proposed respondents disallowed because their participation only possibly necessary. Legislation: Family Law Act 1975 (Cth) ss 4(1)(f), 79, Pt VIIIAA 90AE, 90AF, 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.22, 3.01, 3.03, 3.03, 6.06, 11.01, 11.07, 11.1.4, 11.32
Cases cited: Arnold & Arnold [2021] FamCA 226
B Pty Ltd and Ors & K and Anor (2008) FLC 93-380; [2008] FamCAFC 113
Barro & Barro (1983) FLC 91-300; [1982] FamCA 77
Gould & Gould & Swire Investments Ltd (1993) FLC 92-434; [1993] FamCA 126
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Jordan & Sutton (No 2) [2022] FedCFamC1F 850
Pencious & Pencious [2010] FamCA 605
Wayne & Dillon and Anor [2008] FamCAFC 204
XYZ Pty Ltd and Anor & Charisteas and Ors; ABC Pty Ltd & Charisteas and Ors (2017) FLC 93-782; [2017] FamCAFC 112
Division: Division 1 First Instance Number of paragraphs: 77 Date of hearing: 7 June 2023 Place: Sydney Counsel for the Applicant: Mr T North SC Solicitor for the Applicant: Dorter Family Lawyers and Mediators Counsel for the Respondent: Mr R Dick SC with Mr N Ford Solicitor for the Respondent: Clinch Long Woodbridge Lawyers Counsel for the Proposed Second Respondent: Mr D Roche with Mr S Thomson Solicitor for the Proposed Second Respondent: Clayton Utz The Proposed Third to Sixteenth Respondents No appearance ORDERS
SYC 2425 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TOMA
Applicant
AND: MR DOYLE
Respondent
order made by:
STRUM J
DATE OF ORDER:
16 June 2023
THE COURT ORDERS THAT:
1.Q Pty Ltd in its capacity as trustee for the S Share Trust Deed be joined as a second respondent to the proceeding.
2.The applicant’s Application in a Proceeding filed on 15 May 2023 and the Responses thereto of the first and second respondents otherwise be dismissed.
3.The second respondent file a Notice of Address for Service within 7 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Toma & Doyle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
By Application in a Proceeding filed on 15 May 2023 (“application”), the wife, Ms Toma, who is also the applicant in the substantive proceedings, inter alia, for alteration of interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) (“Act”), seeks that 15 further respondents be joined to the proceedings.
By Response to Application in a Proceeding filed on 29 May 2023, the husband, Mr Doyle, who is presently the only respondent, seeks that the wife’s application be dismissed, with costs.
Further, by Response to Application in a Proceeding filed on 6 June 2023, the proposed second respondent, Q Pty Ltd as trustee for the S Share Trust Deed, similarly seeks that the wife’s application be dismissed, with costs.
The proposed third to sixteenth respondents named and sought to be joined in the wife’s application are:
Third Respondent: Mr T in their capacity as Director of U Pty Ltd;
Fourth Respondent: Mr Sutton in their capacity as Director of U Pty Ltd;
Fifth Respondent: Ms W in their capacity as Director of U Pty Ltd;
Sixth Respondent: Mr Z in their capacity as Director of U Pty Ltd;
Seventh Respondent: U Pty Ltd(formerly P Pty Ltd);
Eighth Respondent: Q Pty Ltd in its capacity as trustee for the P Equity Trust;
Ninth Respondent: Q Pty Ltd in its capacity as trustee for the BB Trust;
Tenth Respondent: BB Ltd;
Eleventh Respondent: K Pty Ltd;
Twelfth Respondent: CC Pty Ltd in its capacity as trustee for the K Trust;
Thirteenth Respondent: G Pty Ltd;
Fourteenth Respondent: J Pty Ltd;
Fifteenth Respondent: Q Pty Ltd in its capacity as trustee for the DD Trust;
Sixteenth Respondent: H Pty Ltd.
In a minute of orders sought by the wife, annexed to her Outline of Argument filed on 6 June 2023, the wife excludes CC Pty Ltd in its capacity as trustee for the K Trust, from joinder as the previously proposed twelfth respondent. Further, at the commencement of the hearing, her Senior Counsel advised that she no longer sought the joinder of J Pty Ltd as the previously proposed fourteenth respondent. Therefore, for the purposes of the determination of the wife’s application, the proposed twelfth to fourteenth respondents are:
Twelfth Respondent: G Pty Ltd;
Thirteenth Respondent: Q Pty Ltd in its capacity as trustee for the DD Trust;
Fourteenth Respondent: H Pty Ltd.
All of the proposed further respondents have been served, on behalf of the wife, with her application and supporting affidavits. None of them have filed any responding material. In the affidavit of Ms EE, the solicitor for the proposed second respondent, she refers at [16] – [19] to the third to eleventh, (formerly) thirteenth and (formerly) sixteenth proposed respondents and deposes that, at least, the eighth, ninth and (formerly) fifteenth proposed respondents advised her that they did not intend to appear at the hearing of the wife’s application, do not wish to be joined to the proceeding and were content for the proposed second respondent to convey their view on the joinder application. See also pp 63 – 75 of Annexure LAC1 to her affidavit. However, that is insufficient. Rule 5.05(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) provides that a “respondent to an Application in a Proceeding who seeks to oppose the application, or seeks different orders, must file and serve a Response to an Application in a Proceeding” (emphasis added). In the circumstances, I shall treat the wife’s application to join all but the proposed second respondent as unopposed. However, that is not the end of the matter, insofar as the joinder of those other proposed further respondents is concerned.
In support of her application, the wife relies upon affidavit by her filed on 15 May 2023 and an affidavit of her solicitor, Andrew Johnson, filed on 6 June 2023, together with her outline of argument filed on 6 June 2023.
In support of his response, the husband relies upon an affidavit by him filed on 29 May 2023, together with written submissions filed on 6 June 2023.
In support of its response, the proposed second respondent, relies upon the affidavit of its solicitor, Ms EE, filed on 5 June 2023, together with an outline of case filed on 6 June 2023.
These proceedings are listed for trial before me, commencing on 3 July 2023, in the Major Complex Financial Proceedings List.
By further amended Initiating Application filed on 15 May 2023, the wife seeks, first, an order that the husband pay to her “an amount equivalent to effect an adjustment of 65% of the total net property pool held between the parties to the Wife (Settlement Sum) to be paid into the Wife’s nominated bank account (Wife’s Account) within 28 days from the date of these Orders or failing which, from amounts realised in accordance with the following orders”.
There then relevantly follow, under the heading “Realisation of Shareholdings”, 85 orders which relate to the realisation of the husband’s interests in what is referred to as the “E Group”, in respect of which she seeks the joinder of the proposed further respondents. Those orders (as they appear in the wife’s further amended Initiating Application, including with typographical errors) are set out in Annexure A to these Reasons for Judgment.
It is implicit in those orders, and Senior Counsel for the wife made explicit, that in seeking such relief she relies principally on s 90AE and s 90AF of the Act.
The wife, at [7] of her affidavit, deposes that she seeks to join “persons/entities relevant to [the husband’s] equity interest in E Pty Ltd and various related and associated entities” comprising the [E Group], “in order to implement the final orders” sought by her in the proceedings.
The proposed second respondent is Q Pty Ltd in its capacity as trustee for the S Share Trust Deed. Q Pty Ltd provides employee share plan administration services, including trustee services, to various companies, including E Pty Ltd. Although Q Pty Ltd is the legal owner of shares in companies that are of significant value, it holds those shares on trust for the benefit of the employees who are beneficiaries of the relevant trusts. It manages employee equity trust schemes for the benefit of a large number of employee participants across a range of industries and locations, including for hundreds of employees of the E Group. The E Group comprises companies which operate businesses which provide a range of services across a number of countries. The husband is employed by the E Group and is the beneficiary of its employee equity trust schemes, the stated purpose of which is to support employee retention, enhance employee involvement and focus in the Group’s business and increase wealth distribution among the Group’s employees. Although Q Pty Ltd also acts as trustee for the proposed eighth, ninth and (formerly) fifteenth respondents, the affidavit of Ms EE makes it clear that it was filed only on behalf of Q Pty Ltd in its capacity as trustee for the S Share Trust Deed, as the proposed second respondent. Further, as noted above, it is only that proposed further respondent which has filed as Response to Application in a Proceeding, as required by the Rules.
It is common ground that a joint single expert valuation of the husband’s E Group interests has been prepared by Mr FF of GG Financial Services dated 21 February 2023. However, that valuation report was not in evidence before me. At [8] of her affidavit, the wife sets out what is said (and apparently not disputed) to be a summary table of the valuations and details of the E Group interests, extracted from the valuation report, as follows:
Interest Number of Shares or Units Gross Value per Share/Unit Gross Value before Discounts E Pty Ltd – ESS 27,836 $570.52 $15,880,995 P Pty Ltd 70,648 $19.56 $1,381,875 P Pty Ltd – ESS 17,008 $19.56 $332,676 G Pty Ltd 40,684 $3.69 $150,083 H Pty Ltd 52,680 $0.68 $35,822 J Pty Ltd 55,207 $0.83 $45,822 K Pty Ltd 339,140 $0.94 $318,792 K Pty Ltd – ESS 79,849 $0.94 $75,058 DD Pty Ltd - EST 65,000 $1.00 $65,000 BB Ltd 3,030 $28.21 $85,476 BB Ltd – ESS 26,746 $28.21 $754,505 TOTAL $19,126,104
The wife submits that total net value of the assets of the parties (including superannuation) is $25,018,340 (see Annexure “A” to the affidavit of her solicitor, Andrew Johnson) and that the most significant asset is the husband’s shareholdings in the E Group, valued at $19,126,104, constituting 76 per cent of their net property. That the most significant asset of the parties is the husband’s shareholdings in the E Group is not disputed by him.
The wife submits that the assets in her sole name total $669,994 in value (although, according to Annexure “A”, the total of such assets appears to be $620,992). Further, she seeks the transfer to her of the husband’s interest in the real property situate at HH Street, Suburb M in the State of New South Wales (valued at $1,800,000 and subject to a mortgage securing $618,096). Together, that property is said by the wife to represent 9.9 per cent of the net assets of the husband and her. In the event the balance of the property settlement sought by her, namely 55.1 per cent or $13,785,105, by way of cash adjustment, is not paid within 28 days of the date of final orders, she seeks that the husband and the proposed further respondents be “by Orders 2 to 86 ordered to exercise their respective powers in relation to the husband’s shareholding in the [E Group] so as to achieve the payment of the required sum to the wife” (at [12] of the wife’s Outline of Argument).
By his amended Response to Initiating Application filed 16 September 2022, prior to the wife’s further amended Initiating Application, the husband concedes the retention by the wife of the assets in her sole name, as well as the transfer of the Suburb M property to her (subject to her procuring a discharge of the mortgage thereover) and proposes that he make a payment to her equal to “50% of the net value of the shares that were held by him as at the date of separation (after payment of any relevant tax) in three equal instalments” on or before each of 30 June 2023, 2024 and 2025. Given that the first of those dates has passed, it awaits to be seen what timing he proposes in its stead.
Accordingly, even on the husband’s case, there will be a substantial payment required to be made by him and his Senior Counsel contended that I “ought to focus on the employee share scheme and ask the question is it necessary to join the trustee” (transcript, page 10, lines 41 – 43). That is a reference to Q Pty Ltd in its capacity as trustee for the S Share Trust Deed, the proposed second respondent, where his Senior Counsel conceded that “the bulk of the assets are held” (transcript, page 31, lines 19 – 20), the husband’s interest therein being valued at $15,880,995, such that it is “most unlikely [he] wouldn’t have to sell the shares in the employee trust share” [sic] (transcript, page 47, lines 19 – 20).
The balance of the husband’s interests in the E Group, comprised of the other proposed further respondents, totals only $3,245,109.
The wife submits, correctly, that the husband’s interests in his shares are held subject to the rights and obligations imposed under the constitutions of the various entities and other deeds affecting those shares. Each of the proposed respondents have rights, powers and discretions under those instruments which must be exercised in order for the husband to receive payments in an amount sufficient to satisfy the wife’s claim. Accordingly, the orders proposed by the wife directly impact upon those rights, powers and discretions, such that she submits the participation by each of the proposed respondents as a party is necessary for the Court to determine issues affecting them and they must be included as parties, pursuant to r 3.01 of the Rules.
Rule 3.01 provides:
3.01 Necessary parties
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
The requirements for joinder in r 3.01 are conjunctive; a person must be included as a party to a proceeding if (a) their rights may be directly affected by an issue in the proceeding; and (b) their participation as a party is necessary for the Court to determine all issues in dispute. See Pencious & Pencious [2010] FamCA 605 at [4], per Cronin J.
Rule 3.03(1)(a) relevantly provides, inter alia, that a party to a proceeding may include any person as a party by naming the person as a party in the application, response or reply. However, r 3.03(4) provides that a person may only add another party after the first court date with the leave of the Court, which the wife concedes to be the case.
The husband submits (at [4]) of his Submissions that it is “plainly obvious that much of the relief sought by the wife in the [further amended Initiating Application] is amenable to being summarily dismissed as having no reasonable prospect of success”. Why this is contended to be so was not explained and, other than seeking the dismissal of the wife’s joinder application, there was no application for the summary dismissal of any of the relief sought by her in her further amended Initiating Application.
The husband further submits (at [10] of his Submissions) that orders [2] – [86] sought by the wife are:
…a series of cascading orders requiring compliance of the third parties. This iteration of the Wife’s case is to be understood as containing largely enforcement orders, in the event that the Husband fails to comply with order 1, whereby he is obliged to pay the Wife a lump sum to satisfy her section 79(4) [sic] entitlements.
He also submits that he has an entitlement to less than 1 per cent of the shares on issue in the entities that the wife seeks to join. Why that is said to be relevant is unclear. Further, it is submitted that his ownership of shares in the relevant entities in the E Group is, in many cases, not direct ownership by him but, rather, he is an employee participating in an employee share scheme in which he is allocated an entitlement in only four entities, pursuant to the relevant Employee Share Trust Deed of each entity. However, rather than assist his case, that would seem to assist the wife’s case for joinder.
The husband asserts that, if the proposed third parties are joined as further respondents, he will suffer prejudice. First, he submits that the wife’s application was filed on 15 May 2023, in circumstances where she knew that his trial affidavit was due to be filed the following day, thereby “precluding the Husband from any real prospect of engaging with the proposed joinder application” (at [18] of the husband’s Submissions). However, it was not suggested, either in his written submissions or by his Senior Counsel, what further evidence he might wish to adduce in opposition to the relief sought against the proposed further respondents. If he wishes to do so, it is open to him to seek leave and I shall consider any such application. Secondly, insofar as it is submitted (at [20] of the husband’s Submissions) that it “is to be presumed that the 2nd to 16th Respondents will also be unable to meet the proposed case against them in time to be ready for the Trial scheduled to commence on 3 July 2023”, no such submission was made on the half of the proposed second respondent and, as I have observed above, the other proposed further respondents have not filed Responses opposing their joinder.
Insofar as the husband refers to the requirements in s 90AE(3) and the matters mentioned in s 90AE(4), they are not relevant to the instant issue of joinder of the proposed further respondents but, rather, to whether the relief sought against them should be made. However, they are matters for trial.
The husband submits (at [25] of his Submissions), as does the proposed second respondent, that, notwithstanding the Court’s undoubted power to make orders impacting third parties and notwithstanding the statutory obligation to consider the interests of third parties whose interests may be so impacted, there is no requirement that the Court formally join all such third parties to the proceedings in question, that is contrary to the dicta of Fogarty J in Gould & Gould & Swire Investments Ltd (1993) FLC 92-434 at 80,451, where his Honour said, without qualification, that “the correct procedure, where an applicant in proceedings under the Family Law Act seeks relief against a person who is a stranger to the marriage or relationship, is to name that person as an additional respondent in the proceeding”. Whilst that observation pre‑dates the introduction of Pt VIIIAA of the Act, in which s 90AE and s 90AF are contained, it remains good law in my view, at least as a general proposition.
However, the husband correctly submits, the inclusion of the word “necessary” in r 3.01 is significant. As Warnick J said in Wayne & Dillon and Anor [2008] FamCAFC 204 at [18], that word (albeit in the context of the similar provision in the former Federal Magistrates Court Rules 2001) “must mean something more than ‘useful’ or ‘expeditious’”. His Honour continued:
… if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified ‘case’, joinder is unlikely to be necessary.
Further, in Arnold & Arnold [2021] FamCA 226, Carew J said at [50]:
In my view, and contrary to the submissions of the wife, when considering whether a party is “necessary”, it is relevant to consider whether or not the proposed order is “necessary”. To find otherwise, would suggest that as long as an order against a third party required something to be done, no matter how absurd, the party was “necessary”.
As to any need for particularisation of the claim against the proposed third party, there is no immutable rule or requirement that in every such case that “[s]omething resembling a statement of claim will generally be necessary”: B Pty Ltd and Ors & K and Anor (2008) FLC 93-380. None of the authorities cited by the husband at [29] – [34] establish that this is invariably so. It will depend on the nature of the claim in each case.
In the present case, the proposed second respondent does not dispute that the husband’s interest in S Share Trust is his property. Indeed, that is one of the reasons why the proposed second respondent opposes its joinder to the proceeding, submitting (albeit in response to a matter raised by me), that his interest therein is akin to an interest in a bank account, which would not ordinarily require the joinder of the bank. The orders sought against it are substantially of a machinery nature, for example, imposing time limits. On the evidence and the submissions of the husband and the proposed second respondent, it is difficult to see how a pleading would add anything further to their understanding of the orders sought by the wife against the proposed further respondents.
Section 90AE(1) provides that orders under that section may only be made “[i]n proceedings under section 79”. Accordingly, the wife submits (at [19] of her Outline of Argument) that:
Once judgment is pronounced in proceedings under s79 then arguably the proceedings under that section are at an end and the wife could not thereafter seek relief under s90AE in the event that the husband failed to make the payment of any part of the sum awarded in her favour.
(Emphasis added)
None of the counsel who appeared before me was able to cite any authority where s 90AE was invoked after orders were made under s 79, for the purpose of enforcing same.
The husband submits that joinder of the proposed further respondents, and in particular the proposed second respondent, is not necessary because ch 11 of the Rules deals with the enforcement of financial orders, such that the wife’s joinder application is a premature attempt at securing enforcement orders. He points, for example, at [38] of his Submissions, to r 11.07(e) which provides that, amongst its general enforcement powers, the Court may make an order in aid of the enforcement of an obligation to pay money.
To the contrary, the wife submits (at [20] of her Outline of Argument) that:
… the procedures for enforcement available under Part 11.1 of the Rules would not assist the wife in compelling the proposed respondents to perform powers or exercise discretions possessed by them and which must be exercised in order for the husband’s shares to be sold.
That is not necessarily so. Part 11.1 of the Rules provides for the enforcement of financial orders and obligations including, at r 11.01(1)(a), an obligation to pay money. Rule 11.05(c) provides that an obligation to pay money may be enforced by, inter alia, an order for the attachment of debts, including under a Third Party Debt Notice pursuant to Div 11.1.4 of the Rules. Rule 11.32(a) provides that Div 11.1.4 applies, inter alia, to “money payable to a payer by a third party on the date when the enforcement order is served on the third party”.
Further, unlike s 90AE, s 90AF(2)(a) provides that, in proceedings under s 114, the Court may make an order or grant an injunction that “directs a third party to do a thing in relation to the property of a party to the marriage”.
Section 114(3) of the Act provides:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
Paragraph (f) of the definition of “matrimonial cause” in s 4(1) of the Act refers to:
any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.
Accordingly, it might be open to the wife to pursue any of the proposed further respondents in relation to the husband’s interests in the E Group after the making of an order under s 79.
The husband submits that procedural fairness cannot be said to be accorded to the proposed further respondents who only received notice of the orders sought against them within five weeks of the final hearing. However, that is not a matter for him but for them. Other than the proposed second respondent, none of the other proposed further respondents have seen fit to file not only any response to the wife’s joinder application but also any affidavit material. Ms EE, solicitor for the proposed second respondent, does not take the point in her affidavit. Rather, her evidence (at [20] of her affidavit) is that, on the basis of her experience from acting for the E Group in a different proceeding to which it has been joined, she believes that “the practical scope of the role in proceedings of a third parties to a marriage increases significantly upon that party being joined to the proceeding”. She asserts this is so because:
a.the third party is served with all of the documents filed in the proceeding, including but not limited to subpoenas, affidavits, applications in a proceeding and other court processes;
b.acting prudently and in line with their professional obligations, the third party’s lawyers must review all such material to determine whether the documents affect the interests of the third party; and
c.the third party, as a party to the proceeding, will owe obligations to give disclosure all information relevant to the proceeding.
Accordingly, the husband’s argument is not supported by the proposed second respondent, which could properly have taken the point. As to the matters in sub-paragraphs (a) and (b), will be open to the proposed second respondent, if joined, to seek an order for costs at the conclusion of the proceedings. As to the matters in sub-paragraph (c), whilst the proposed second respondent will, indeed, have an obligation to make disclosure if joined, the metes and bounds of that obligation will be delineated (as it concedes) by what is relevant to the proceeding. The claim against it is limited in nature. Whilst r 6.06(3) provides that “a party to a financial proceeding must make full and frank disclosure of the party’s financial circumstances” and r 6.06(5)(a) relevantly provides that a party filing a response to a financial proceeding must file, at the same time, a Financial Statement, r 6.06(2) provides that those sub-rules (inter alia) “do not apply to a party to a property proceeding who is not a party to the marriage or the factor relationship to which the application relates, except to the extent that the party’s financial circumstances are relevant to the issues in dispute”.
Further, as the wife correctly submits (at [22] of her Outline of Argument), if any of the proposed further respondents are joined, it is a matter for each of them to consider for themselves the extent to which they participate in the proceedings. For example, I note that r 2.22(1) provides that, if a party has been served with a document referred to in r 2.22(2), which includes an application for final orders, and that party does not want to contest the relief sought therein, that party may file and serve a Submitting Notice. Cf. Barro & Barro (1983) FLC 91-300 where, albeit in the case of third parties who intervene in (rather than are joined to) proceedings, the Full Court held that there are three levels of participation, ranging from:
(a)permitting such a person to be heard without applying for leave to intervene;
(b)granting such a person leave to intervene limited to the issue in question; or
(c)granting such a person leave to intervene generally in the proceedings between the spouse parties.
Like the husband, the proposed second respondent opposes its joinder. It does so for three main reasons. It submits that the wife has provided no evidence showing the joinder is necessary to protect her interests; that joinder would prejudice it by requiring it to engage in proceedings in which it has no substantial interest; and that, as a matter of case management, it is neither necessary nor desirable to join it to the proceedings. Many of the proposed second respondent’s submissions overlap with those of the husband and do not need to be repeated or addressed again.
The proposed second respondent (at [13] of its Case Outline) submits that it is not necessary for a third party to be joined to proceedings in order to be subject to an order under s 79 of the Act. It refers to the decision of the Full Court in XYZ Pty Ltd and Anor & Charisteas and Ors; ABC Pty Ltd & Charisteas and Ors (2017) FLC 93-782 which concerned restraining orders that had been made against a third party, namely, a corporate trustee of a discretionary trust, the sole shareholder of which was the husband’s mother. It relies upon the following passage, at [115]:
…Section 90AE and s 90AF are specifically concerned with the giving of notice to third parties of orders sought against them and are not concerned with joinder (Samootin v Wagner (2006) FLC 93-265 (“Samootin”)). The Act is silent about joinder and various methods have been described whereby a third party in fact becomes a party. For example, by being named on an application, by order and, in our view as occurred here, through service of a claim for relief seeking orders against them. Moreover as the discussion which follows demonstrates ABC was given a full right to participate in the application made against it. This argument is one of form over substance (Gould & Gould; Swire Investments Ltd (1993) FLC 92-434).
However, that case is distinguishable, as it did not involve an application for joinder, as in the present case, but rather injunctions actually made against third parties under s 90AF. Further, the Full Court in that case said at [117]:
It is common ground that the first time that the sole shareholder and directors of ABC learnt that orders were sought against the company was when the wife filed her written submissions. However, it bears repeating the sole shareholder, both directors, the husband and the wife had been questioned in the hearing about ABC and its assets.
Accordingly, in those circumstances, the Full Court was satisfied that notice was given: at [118]. Further, the Full Court noted at [119] that, “despite the contention that ABC was not afforded procedural fairness, the directors and shareholder made written submissions in response to the wife’s submissions seeking interim and final orders”, concluding at [120] that it did “not see how ABC can claim the benefit of making submissions on the point in response to the wife, while also claiming that they have not had the opportunity to be heard”.
The proposed second respondent correctly submits (at [12] of its Case Outline) that, whilst s 90AE requires procedural fairness to be given to third parties in relation to orders sought against them, it is silent as to joinder. However, that does not advance its opposition to joinder in the present case. Joinder is governed by r 3.01. The issue in the present case is whether: (a) its interests may be affected by an issue in the proceedings; and (b) its participation is necessary to determine all issues in dispute in the proceedings.
The proposed second respondent, neither in its Case Outline nor in the oral submissions of its Senior Counsel, did not address the first of those issues, namely, whether its interests may be affected by an issue in the proceedings. However, from the relief sought by the wife against it, the answer is clearly in the affirmative. In relation to the second of those issues, it submits (at [22]) that its joinder is not necessary because the wife provides no evidence of any risk that it (or any of the other proposed further respondents) might “conspire” to frustrate or defeat the relief sought by her. Further, it submits it is not at liberty to frustrate requests by the husband to require it to cancel one or more share units and to distribute to him a payment in cash equal to the market value of each cancelled share unit.
However, insofar as the proposed second respondent submits (at [23]) that the proposed orders sought by the wife do not suggest that she is seeking to interfere with the terms of the governance documents referred to in paragraphs [2] – [79] of the orders sought by her, that is not necessarily correct. For example, as was pointed out by her Senior Counsel, she seeks to impose time limitations upon the proposed further respondents. In respect of the proposed second respondent, see proposed orders [3] and [5], set out above. Indeed, the husband deposes as follows, at [13] – [15] of his affidavit:
13.…By order 3, she seeks to compel the trustees of ESS to act within a certain number of business days. The Wife seeks to take priority by compelling the trustees to act different to any other ESS participant. I would expect that the trustee may oppose being so bound.
14.In order 5, the Wife seeks to compel the trustees to act within 30 days. The Wife seeks to take priority by compelling the trustees to act different to any other ESS participant. I would expect that the trustee may oppose being so bound.
15.In order 6, of the proposed orders the wife seeks to take priority over any other participant for the sale of shares. In order 8, the Wife seeks a repetition of certain processes but does not clarify when or how such processes would be repeated and whether priority to other employees in the scheme.
Exhibit “A” to the wife’s affidavit is a copy of the governance documents in respect of each of the entities in the E Group. In respect of the proposed second respondent, included in that exhibit is the S Share Trust Deed, as well as the E Trust Handbook.
I was referred specifically to cll 12, 13 and 14 of that deed. Clause 12.1(c) relevantly provides:
The Trustee shall by resolution cancel some or all Share Units registered in a particular Share Unit Holder’s name on … receipt by the Trustee of a request in writing from the Share Unit Holder to cancel one or more Share Units not then subject to the achievement of a Stipulated Date.
Clause 12.3 provides:
On the Trustee resolving to cancel Share Units, the Share Units specified in the resolution, shall automatically be cancelled and the Trustee shall alter the Register accordingly and by notice in writing to the Share Unit Holder the Trustee shall notify the Share Unit Holder of:
(a)the cancellation of the Share Units specified in the resolution formerly registered in that Share Unit Holder’s name;
(b)the Cancellation Entitlement for each of the Share Units cancelled; and
(c)the amount of the loan outstanding under Clause 11 now repayable as a result of the cancellation.
Clause 13 provides:
13. CANCELLATION ENTITLEMENT
13.1The Cancellation Entitlement for each Share Unit cancelled but not subject to a Stipulated Date shall be:
(a)the in specie distribution of the Allocated Share that is referrable to that Share Unit; or
(b)a payment in cash equal to the market value of that Allocated Share,at the Share Unit Holder’s election.
13.2The Cancellation Entitlement for each Share Unit cancelled but subject to the achievement of a Stipulated Date shall be the surrender of the Share Unit in full satisfaction of the outstanding loan of the Share Unit Holder pertaining to that particular Share Unit.
Insofar as those clauses refer to a “Stipulated Date", that term is defined in cl 1.1(a) as meaning “in relation to a Share Unit the date, if any, specified by the Trustee at the time of the issue of the Share Unit as the stipulated date”. There is no evidence, nor was any submission (written or oral) made, as to whether there is any applicable Stipulated Date.
Clause 14 provides:
14. DISTRIBUTION ON CANCELLATION
14.1 Subject to the repayment of any outstanding loan moneys:
(a)the Trustee shall on cancellation of a Share Unit distribute to the Share Unit Holder the Cancellation Entitlement pursuant to Clause 13 for that Share Unit and any Share Unit Distribution Entitlement pursuant to Clause 15 for that Share Unit relating to an Accounting Period that ended prior to the cancellation of the relevant Share Unit that remains unpaid; or
(b)where the Share Unit Holder has died, the Trustee shall distribute the Cancellation Entitlement to the legal personal representative of the Share Unit Holder.
The distribution shall be made as soon as practicable after the cancellation of the relevant Share Unit.
14.2For the purpose of meeting any Cancellation Entitlement, the Trustee may without limiting the exercise of any other power contained herein:
(a)transfer or assign the Allocated Shares the value of which being sufficient to provide all or part of the cancellation Entitlement; or
(b)pay out of the Trust Fund or any part thereof any available moneys in its hands whether received, held or deemed to be income or being cash contributed to the Trust Fund not being moneys paid or allocated to, or in respect of, other Share Unit holdings; or
(c)carry out any combination of the above.
It was submitted to me by Senior Counsel for each of the husband and the proposed second respondent that the trustee has no discretion. However, no timeframe is imposed by cl 12.1, 12.3 (in so far as notice is concerned), cl 13.1(b), cl 14.1 (which only provides for the distribution to be made “as soon as practicable” after the cancellation of the relevant Share Unit) or 14.2(b).
I was also referred to cl 2.2 and cl 2.2.1 of the handbook which provide:
2.2 You may sell your Units to the EET at your discretion.
2.2.1If a Monetization Event has not occurred, you will be able to offer the sale of your Units to the EET. You will be required to complete a Notice of Sale (withdrawal form) to be provided to the Board. The EET will facilitate the sale to a current or new member of the EET as soon as possible.
The interrelationship between these two documents was not explained, nor is it readily apparent. Ordinarily, it might be presumed that the trust deed would prevail over the handbook. However, Senior Counsel for neither the husband nor the proposed second respondent submitted this to be so. Further, they did not join issue with the wife’s description of those documents as constituting governance documents. It will be apparent that the handbook suggests, inter alia, that a request to sell units may not be able to be accommodated “until a suitable buyer is available” and, if no buyer is available for the units, the husband “may have to wait until a buyer is found”. There is no evidence before me of how long this process has taken in the past and what might occur if a suitable buyer is not available.
The proposed second respondent submits that it would be prejudiced by joinder because, notwithstanding its admitted “limited interest in the proceedings”, joinder “would almost inevitably require it to expend time, money and attention in relation to these proceedings than would otherwise be the case” (at [25]). However, in circumstances where the proposed second respondent contends that it only has a limited interest in the proceedings and, in the affidavit of its solicitor, Ms EE, does not take issue with the form of the orders sought by the wife against it, it is difficult to see, notwithstanding the submissions to the contrary, how it would be required to expend considerable time, money and attention. Indeed, as I have observed above, it could file a Submitting Notice pursuant to r 2.22 of the Rules. Further, given the net asset pool in this case, whether the wife receives 65 per cent thereof, as she seeks, or 50 per cent thereof, as the husband proposes, there can be no question that the wife could meet any order for costs made in favour of the proposed second respondent.
The husband submits (at [48] of his Submissions) that a Mr Sutton is a very substantial shareholder in all of the companies comprising the E Group and is its promoter, main director and the “face” thereof. The husband points to the fact that Mr Sutton and his wife are litigants in this Division of the Court, the trial of which proceedings was recently vacated until 2024, and that Ms Sutton sought to join 65 respondents to those proceedings, including him. Leave to join the present husband was refused by Harper J. That decision, which is relevant to the issues in the present proceedings, is reported as Jordan & Sutton (No 2) [2022] FedCFamC1F 850.
It is difficult to comprehend why, in the present case, Senior Counsel for each of the husband and counsel for the proposed second respondent submitted that the decision of Harper J in Jordan & Sutton (No 2) supports their opposition to joinder. In my view, it does the contrary.
In that case, the wife sought to join numerous third parties to s 79 proceedings between the husband and her pursuant to r 3.03(4), as she sought orders which would affect their rights under Pt VIIIAA, and in particular s 90AE, of the Act. The final orders she sought involved a significant transfer of shares in a parent company. Joinder was opposed by the husband and the proposed respondents.
At [38], Harper J referred to John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131], where the High Court stated that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of the non-party, the non-party is a necessary party and ought to be joined.
At [39] – [41], Harper J said:
39It does not matter whether a proposed party wishes to participate in a proceeding: Arida v Arida [2015] NSWCA 170, per Sackville AJA at [19] (with Bell P and Macfarlan JA agreeing).
40It is well settled that, applying these principles, it can be appropriate to join third parties to a marriage to proceedings in this Court, for example, to bind them in respect of declarations as to property interests pursuant to s 78 or as ancillary to the exercise of discretion in s 79 or s 106B to set aside dispositions: Valceski v Valceski (2007) 70 NSWLR 36 at [31]–[33]; Khalif & Khalif (No 2) [2021] FedCFamC1F 308 at [37]. Clearly, according to these principles, the existence of claims for orders affecting the rights or interests of third parties proposed to be joined usually compels the conclusion that those parties are “necessary”. Such joinder is, nonetheless, an exercise of the Court’s discretion.
41Under the Act and the Rules, there is no special procedure or regime for representative proceedings, as in some other court. Joinder of parties is dealt with at several places. For example, in the Act, s 79(10) grants an entitlement to various classes of person to be joined as parties. These include creditors and any other person whose interests would be affected by the making of an order pursuant to s 79. No party here relies on this provision.
After considering the number of authorities, his Honour said at [59] – [61]:
59In light of these authorities, I agree that the provisions of Pt VIIIAA are themselves not directed to joinder, although they can be used to make orders affecting the interests or assets of third parties to the marriage who participate in the proceedings but are not parties. I did not understand the wife to argue to the contrary. Rather, joinder is dealt with in the relevant parts of the Rules or under the general law. The question for the Court under r 3.01 will always be whether, in all the circumstances, joinder of third parties is “necessary”. Ultimately this is no different to the essential question posed to the Court by application of ordinary general law principles concerning joinder. Once the Court is satisfied that joinder is necessary, it will be ordered either under the mandatory terms of r 3.01 or in the exercise of discretion under the general law.
60It was the tenor of the respondents’ submissions that affording procedural fairness to third parties largely determined the question of necessity. I do not accept this is correct. Procedural fairness is clearly essential for third parties, and required by both s 90AE and s 90AF. The existence of the provisions of Pt VIIIAA may serve to limit the circumstances in which a finding of necessity should be made. However, the issue of necessity of joinder can only be addressed by considering all the circumstances of the case, which include affectation of the third parties’ interests or assets, questions of prejudice and case management issues. Procedural fairness does not involve a fixed body of rules to be applied in a formulaic manner: Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451 at [59]. It is question of avoiding practical injustice: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]. There is an obvious overlap between the exercise of case management powers and avoiding practical injustice. I observe that case management powers are often more effectively exercised over parties to the proceedings.
61In relation to the impact of Pt VIIIAA on the necessity for joinder, the difficulty is identifying to what extent its provisions may be said to limit the necessity for joinder. In that regard, senior counsel for the wife characterised the argument of the third parties (above at [54]) as reductive to the point of futility. Its logical consequence was that, in the context of Pt VIIIAA relief, joinder of the third parties would always be unnecessary because “for all intents and purposes, [the third parties] are going to be treated as parties, therefore, they will be accorded procedural fairness, therefore, the orders will be binding against them” (Transcript 10 October 2022, p.2 lines 42–44). In other words, there is no necessity to join the third parties because in all material respects, they will be treated as parties without joinder. As the wife argued, the contentions of the third parties, if correct, would mean there would never be a necessity to join third parties to resist orders made pursuant to s 90AE because they could be treated as parties for all intents and purposes, but not be joined. While I accept that a claim to the exercise of the powers in s 90AE in respect of the rights and interests of third parties does not necessarily require joinder, it is likely there will be circumstances where it does…
His Honour continued at [62] – [69]:
62An approach of treating third parties as parties in all material respects without joinder is not convincing. In my view, it emerges that the question of the necessity for joinder of third parties, where relief is sought pursuant to s 90AE, will be answered most readily by considering aspects of prejudice and case management considerations.
63The wife submits that there will be no obvious greater efficiency or lesser cost involved in simply treating the third parties as if they were parties to the proceeding, to discharge the onus that they have been afforded procedural fairness. Rather, such a course of action may bring with it all the ordinary procedural issues with the additional onus and ambiguity associated with determining whether the third parties have been afforded procedural fairness. I generally accept this argument.
64It is argued by both the husband and the Fourth Respondent that in this matter, the 65 parties the wife seeks to join will have no interest in many of the matters in dispute between the husband and wife. Joinder would require them to deal with considerable amounts of material and evidence not relevant to the discrete issue to which they are interested. Doing so is likely to be “onerous and cumbersome” for the individual shareholders.
65The Noteholders argued that they would be prejudiced if they are formally joined. Senior counsel for the Noteholders argued in their case outline that:
59.… if joined, it would be incumbent on the [Noteholders] as parties to the proceedings to review all of the voluminous correspondence, attend all case management and interlocutory hearings and attend the final hearing…notwithstanding that most of the correspondent and most of those hearings may have limited bearing on their interests. This would cause the [Noteholders] to incur substantial legal costs in circumstances where it would be unlikely that [they] could assist the Court in the resolution of the majority of the issues raised…
66It was argued that any prejudice otherwise arising from the burden of joinder could be avoided in a number of ways without joinder. First, by requiring the wife to plead her claims against them and identify the evidence in support. Doing so would put the third parties, the Court, and the husband on proper notice, thus affording the third parties procedural fairness without imposing on them the onus or cost associated with being joined as a party to the proceedings. I do not see how ordering a pleading would obviate the need for joinder. As Warnick J commented in Wayne (above at [51]) greater particularisation is likely to favour joinder. Secondly, it “would be open to the Court to grant leave for the [Noteholders] to make submissions and file evidence on those points”, which may affect their rights at the appropriate time (Noteholders’ case outline, paragraph 50). I see no force in this argument either. It is another aspect of third parties being parties in all but name.
67The Noteholders also argued the question of their joinder was premature. They submitted that the wife has not demonstrated why it is necessary to join their clients at present in order to determine “all issues in dispute in the proceedings” in circumstances where the issues affecting the third parties are likely to be discrete, and that will only become relevant in circumstances where the relief sought by the wife, with respect to the shares, enliven the pre-emptive provisions in the Shareholders’ Agreement and the Note Subscription Agreement. It was argued that while it may become necessary in the future for the Noteholders to be joined to the proceedings, to do so now would be premature.
68I do not accept that joinder of a third party is only necessary where that party has an interest in respect of all issues. It is not uncommon in a case with numerous parties for some of them to have an interest in a limited number of issues. The requirement of the rule to compel joinder is to enable the Court to determine and dispose of all issues in the proceedings. The presence of a third party may be necessary as a party only for some issues as part of this process. Nor do I think the question of joining the Noteholders is premature. The trial is listed to commence in February 2023. The present formulation of the wife’s claim discloses the area of debate where the interests of the Noteholders are relevant and could be affected. If they should be joined, it is appropriate for this to happen as soon as possible.
69The wife pointed to a number of possible sources of prejudice to her if the third parties are not joined. It exposes the wife to the risk that the orders of this Court, which are intended to be binding on the third parties, may not be enforceable in the event of insolvency as it leaves open the argument that the third parties were not afforded procedural fairness as they were not joined as parties, irrespective of their level of participation in the proceedings or their desire, or in this case, lack of desire, to be joined. Senior counsel for the wife took me to In the matter Glenvine Pty Limited (2020) 160 ACSR 473 and In the matter of ZH International Pty Ltd (in liquidation) [2022] NSWSC 2 in which such an argument was successfully advanced. Senior counsel for the wife argued that while at present there is no argument of imminent liquidation, there is a risk of there so being if the third parties are not joined, and as small as that risk is, that risk is sufficient to sway the Court towards joinder if all else is neutral. While this may be true, as a form of prejudice I find it to be remote and not persuasive on the question of joinder.
Harper J concluded at [75] – [78]:
75The fact that s 90AE issues may appear largely discrete from other issues in the matrimonial cause between the spouse parties does not mean that at present they can be treated as entirely separate. For example, the conclusion required by s 90AE(3)(a) is that the orders are reasonably appropriate “to effect a division of property between the parties to the marriage”. Consequently, the overall division of property between the spouse parties is inevitably connected to and bears upon the exercise of the powers in s 90AE. So does the question of whether orders are just and equitable (s 90AE(3)(d)). The Shareholders or Noteholders may decide they should cross examine the wife or experts about, and make submissions about, the overall division of property. It would be unusual for non-parties to be permitted to cross examine parties, and the very fact they may apply to do so begs the question of why they should not be joined…
76These considerations in my view lead to the conclusion that the participation of the Noteholders as parties is necessary, and they should be joined. I will order their joinder.
77This does not inevitably mean they must participate in all aspects of the hearing of the issues. The Noteholders can form their own view about the extent to which they participate. However, although they presently disavow any need to involve themselves in a number of issues between the husband and the wife, such as contributions during the relationship, it is open to them as parties to seek to cross examine the husband and the wife and to make submissions on such issues as part of their resistance to any orders binding them pursuant to s 90AE.
78I see no purpose in ordering a pleading at this stage. Senior counsel for the wife made clear the nature of the relief sought against the third parties (above at [35]). However, this does not preclude a later conclusion that a pleading should be ordered.
These passages from the decision of Harper J in Jordan & Sutton (No 2) answer and dispose of several of the arguments put on behalf of the husband and the proposed second respondent.
Turning to the conjunctive requirements of r 3.01 of the Rules, namely, whether the rights of the proposed further respondents may be affected by an issue in the case and, if so, that their participation is necessary to enable the Court to determine all issues in the case, the position of the proposed second respondent is, in my view, different to that of the other proposed further respondents. That this is so is not because the former has filed a response whereas the latter have not. Indeed, as will become apparent, I propose to order the joinder of the proposed second respondent, but not the other proposed further respondents, notwithstanding that the wife’s joinder application in respect of them is unopposed.
Turning first to the application to join the proposed second respondent. It will be apparent from the analysis above that its rights may be directly affected by an issue in the proceeding. The wife seeks to impose upon it obligations, albeit of an apparently machinery nature, to which it is not presently subject under its relevant the governance documents, namely, the S Share Trust Deed, as well as the E Trust Handbook. Those obligations appear in orders 3 and 5 and possibly 4 and 6 sought by the wife. Further, as appears from the Handbook, it may be that the proposed second respondent has (or asserts itself to have) a degree of discretion not readily apparent from the Trust Deed, which the wife by those orders seeks to affect. Further, given the concession by Senior Counsel for the husband that the payment to the wife will be sourced from his interest in the S Share Trust , I am satisfied that the participation of the proposed second respondent is necessary for the Court to determine all issues in dispute in the proceeding. Simply put, in circumstances where the wife seeks to impose upon it obligations to which it is not otherwise subject, in order to effect the payments she seeks, or even the lesser payment the husband proposes, I am satisfied that the conjunctive requirements of r 3.01 of the Rules are satisfied and that it must be joined.
However, in relation to the other proposed further respondents, I decline to join them. This is so, notwithstanding that the wife’s joinder application is unopposed by them. As is apparent from the orders sought by the wife in relation to them, and as her Senior Counsel conceded in the course of the hearing, they are sought to be joined in the event there are insufficient funds resulting from the realisation of the husband’s interest in the S Share Trust. Therefore, I cannot be satisfied that, at present, their participation as a party is necessary, rather than merely possibly necessary, for the Court to determine all issues in dispute in a proceeding. On the evidence, as it presently stands, in order for the wife to receive 65 per cent of the net asset pool (if this is what is ultimately found to be just and equitable), in addition to the retention by her the assets to which is presently entitled, as well as the receipt by her of the Suburb M property, she will apparently need to receive a payment in the order of $13,785,105, in circumstances where, on the evidence of the joint single expert, the value of the husband’s interest in the S Share Trust is $15,880,995. Whilst, upon realisation, a lesser sum might be received by him, there is no evidence whatsoever as to what that might be. Given the prima facie surplus, in the order of $2.096 million, I cannot be satisfied on the evidence that the joinder of the other proposed further respondents can be said to be necessary. Further, as I have observed above, if recourse to the husband’s other interests in the E Group is necessary to be had, by way of enforcement, I am not satisfied that the wife will be without remedies, namely, pursuant to s 90AF of the Act and/or Ch 11 of the Rules.
In the circumstances, I shall order that Q Pty Ltd in its capacity as trustee for the S Share Trust Deed be joined as a second respondent to the proceeding and that the wife’s Application in a Proceeding filed on 15 May 2023 otherwise be dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 16 June 2023
ANNEXURE A
B. Orders
Cash Adjustment to Wife
1.That the Husband shall pay to the Wife an amount equivalent to effect an adjustment of 65% of the total net property pool held between the parties to the Wife (Settlement Sum) to.be paid into the Wife's nominated bank account (Wife's Account) within 28 days from the date of these Orders or failing which, from amounts realised in accordance with the following Orders.
Realisation of Shareholdings
Note: Capitalised terms in Orders 2 to 8 have the same meaning as in the S Share Trust Deed E Group ESS) and unless indicated otherwise, references to clauses are to clauses in the E Group ESS.
2.The Husband must within 5 business days, make a request under clause 12.1(c) to the Second Respondent in the form required under the E Group ESS (including without limitation, clause 12.2) for the cancellation of so many of the Share Units held by the Husband so that the Cancellation Entitlement, after deducting any loans repayable on cancellation under the E Group ESS, is at least the Settlement Sum (Cancellation Request).
3.To facilitate the Husband's compliance with Order 2, the Second Respondent must within 2 business days provide the Husband with a statement of the current market value of a Share Unit, the amount outstanding on any loans made to the Husband for the purposes of acquiring his Share Units, the Second Respondent's prescribed form of cancellation request, whether there is sufficient funds in the Trust Funds to meet the Cancellation Request under clause I 4.2(b) and such other relevant information to facilitate the expeditious execution of Order 2.
4.The Husband hereby elects and the Second Respondent hereby accepts that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b). If this election is not effective for any reason, the Husband must otherwise separately make an election in accordance with the E Group ESS (simultaneously with making the cancellation request under Order 2) to the Second Respondent that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b).
5.The Second Respondent must, within 30 days of/as soon as practicable upon receiving the Cancellation Request, cancel the Share Units the subject of the Cancellation Request and pay the distribution under clause 14 up to a maximum of the Cancellation Entitlement to the Wife's Account as the nominee of the Husband and pay any balance in excess of the Settlement Sum to the Husband.
6.For the purposes of Order 4, the Second Respondent agrees to first meet the Cancellation Entitlement, (or so much of the Cancellation Entitlement) from available moneys in the Trust Fund in accordance with clause 14.2(b). If the Trust Funds are insufficient to pay the Cancellation Entitlement in full, the Second Respondent must do all things reasonably required under the Constitution and Shareholders' Agreement of E Pty Ltd to realise the unpaid balance of the Cancellation Entitlement by effecting a transfer of the relevant number of Allocated Shares pursuant to clause 14.2(a) and otherwise exercise any other power available to it arising from the Cancellation Request to ensure the payment of the balance of the Cancellation Entitlement as contemplated under Order 5.
7.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 2 to 8.
8.If for any reason the payment to the Wife under Orders 4 and 6 is less than the Settlement Sum, including without limitation by reason of repayment of loans or fluctuations in the market value of the Allocated Shares, the Husband and Second Respondent must repeat Orders 2 to 8 until the total amount paid to the Wife under Order 4 and/or 6 is equal to the Settlement Sum or the Husband has requested the cancellation of all of his Share Unites, whichever is first to occur.
9.If, based on the information supplied by the Second Respondent under Order 2 (or otherwise):
(a)the Wife acting reasonably determines that there will be a shortfall between the Settlement Sum and the total amount calculated as being payable to the Wife under the preceding Orders; or
(b)the total amount calculated as being payable to the Wife under the preceding Orders will be equal to the Settlement Sum, but there is a shortfall between the amount actually paid under the preceding Orders and the Settlement Sum on the day that is 30 days from the date of these Orders.
(c)(both amounts in Orders 9 and a) being a Shortfall Amount), the Wife may, acting reasonably, at any time up until the Settlement Sum is paid in full require, by notice in writing to the relevant Respondents, one or more of the Respondents listed below to immediately comply with the Orders listed below (each set of Orders being an Ancillary Order):
Note:
Respondents Ancillary Orders First, Third, Fourth, Fifth, Sixth and Seventh Respondents 10 to 15 (inclusive) First and Eighth Respondents 16 to 22 (inclusive) First and Ninth Respondents 23 to 29 (inclusive) First and Tenth Respondents 30 to 35 (inclusive) First and Eleventh Respondents 36 to 43 (inclusive) First and Twelfth Respondents 44 to 50 (inclusive) First and Thirteenth Respondents 51 to 58 (inclusive) First and Fourteenth Respondents 59 to 64 (inclusive) First and Fifteenth Respondents 65 to 71 (inclusive) First and Sixteenth Respondents 72 to 79 (inclusive) Capitalised terms in Orders 10 to 14 have the same meaning as in the Constitution of P Pty Ltd (now U Pty Ltd) (P Pty Ltd Constitution) and unless indicated otherwise, references to clauses are to clauses in the P Pty Ltd Constitution.
10.The Husband must within 5 business days of receipt of notice under Order 8:
(a)request the Board of the Seventh Respondent to transfer at least the number of Shares required to be transferred so that the payment under clause 15.2 to be made on completion of such a transfer of Shares is no less than the Shortfall Amount after deducting any amounts actually received by the Wife at the date that the Husband and the Third, Fourth, Fifth, Sixth and Seventh Respondents received the notice under Order 9, under one or more of the other Ancillary Orders (P Pty Ltd Settlement Sum); and
(b)otherwise do all acts and things reasonably required to give effect to Order 10.
11.The Husband and the Third, Fourth, Fifth and Sixth Respondents must within 20 business days execute a written resolution pursuant to clauses 24.21 to 24.23, resolving that the Husband is deemed to be a Leaver for the purposes of clause 15 and promptly notify the Husband in writing pursuant to clause 15.1 to transfer to the Seventh Respondent or a nominee of the Seventh Respondent so many of the Husband’s Shares as notified by the Husband under Order 10.
12.Within 10 business days of the notification to the Husband under Order 11, the Husband must do all things and sign all documents required under the P Pty Ltd Constitution to affect the transfer of Shares under Order 11.
13.Within 10 business days of the Husband's satisfaction of Order 11, the Seventh Respondent must procure payment under clause 15.2 up to a maximum of the P Pty Ltd Settlement Sum to the Wife's Account as the nominee of the Husband and pay any balance in excess of the P Pty Ltd Settlement Sum to the Husband.
14.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 10 to 14.
15.lf for any reason the payment to the Wife under Order 12 is less than the U Settlement Sum, the Husband and the Third, Fourth, Fifth, Sixth and Seventh Respondents must repeat Orders 10 to 14 until the total amount paid to the Wife under Order 12 is equal to the P Pty Ltd Settlement Sum or the Husband's Shares have been fully sold, whichever is first to occur.
Note: Capitalised terms in Orders Error/ Reference source not found. to 21 have the same meaning as in the P Pty Ltd (now U Pty Ltd) Employee Equity Trust Deed (P Pty Ltd ESS) and unless indicated otherwise, references to clauses are to clauses in the U Trust Deed ESS.
16.The Husband must within 5 business days of receipt of notice under Order 8, make a request under clause 12.1(c) to the Eighth Respondent in the form required under the P Pty Ltd (including without limitation, clause 12.2) for the cancellation of so many of the Share Units held by the Husband so that the distribution under clause 14, after deducting any loans repayable on cancellation under the P Pty Ltd ESS, will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife at the date that the Husband and the Eighth Respondent received the notice under Order 9, under one or more of the other Ancillary Orders (P Pty Ltd ESS Settlement Sum).
17.To facilitate the Husband's compliance with Order 16, the Eighth Respondent must within 2 business days of receipt of notice under Order 8 provide the Husband with a statement of the current market value of a Share Unit, the amount outstanding on any loans made to the Husband for the purposes of acquiring his Share Units, the Eighth Respondent's prescribed form of cancellation request, whether there is sufficient funds in the Trust Funds to meet the cancellation request under clause l 4.2(b) and such other relevant information to facilitate the expeditious execution of Order 16.
18.Husband hereby elects and the Eighth Respondent hereby accepts that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b). If this election is not effective for any reason, the Husband must otherwise separately make an election in accordance with the P Pty Ltd (simultaneously with making the cancellation request under Order 16) that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b).
19.The Ninth Respondent must, within 30 days of/as soon as practicable upon receiving the cancellation request in Order 16, cancel the Share Units the subject of the cancellation request and pay the distribution under clause 14 up to a maximum of the P Pty Ltd ESS Settlement Sum to the Wife's Account as the nominee of the Husband and pay any balance in excess of the P Pty Ltd ESS Settlement Sum to the Husband.
20.For the purposes of Order 18, the Eighth Respondent agrees to first meet the Cancellation Entitlement, (or so much of the Cancellation Entitlement) from available moneys in the Trust Fund in accordance with clause 14.2(b). If the Trust Funds are insufficient to pay the Cancellation Entitlement in full, the Eighth Respondent must do all things reasonably required under the Constitution of P Pty Ltd (now U Pty Ltd) and the P Pty Ltd to realise the unpaid balance of the Cancellation Entitlement by effecting a transfer of the relevant number of Allocated Shares pursuant to clause 14.2(a) and otherwise exercise any other power available to it arising from the request made under Order 16 to ensure the payment of the balance of the Cancellation Entitlement as contemplated under Order 19.
21.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 16 to 21.
22.lf for any reason the distribution to the Wife under Order 18 is less than the P Pty Ltd ESS Settlement Sum, including without limitation by reason of repayment of loans or fluctuations in the market value of the Allocated Share, the Husband and Eighth Respondent must repeat Orders 16 to 21 until the total amount paid to the Wife under Order 18 is equal to the P Pty Ltd ESS Settlement Sum or the Husband has requested the cancellation of all of his Share Units, whichever is first to occur.
Note: Capitalised terms in Orders O to 28 have the same meaning as in the BB Ltd Employee Share Trust Deed (BB Trust ESS) and unless indicated otherwise, references to clauses are to clauses in the BB Trust ESS.
23.The Husband must within 5 business days of receipt of notice under Order 8, make a request under clause 12.l(c) to the Ninth Respondent in the form required under the BB Trust ESS (including without limitation, clause 12.2) for the cancellation of so many of the Share Units held by the Husband so that the distribution under clause I 4, after deducting any loans repayable on cancellation under the BB Trust ESS, will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife at the date that the Husband and the Ninth Respondent received the notice under Order 9, under one or more of the other Ancillary Orders (BB Trust ESS Settlement Sum).
24.To facilitate the Husband's compliance with Order 0, the Ninth Respondent must within 2 business days of receipt of notice under Order 8 provide the Husband with a statement of the current market value of a Share Unit, the amount outstanding on any loans made to the Husband for the purposes of acquiring his Share Units, the Ninth Respondent's prescribed form of cancellation request, whether there is sufficient funds in the Trust Funds to meet the cancellation request under clause 14.2(b) and such other relevant information to facilitate the expeditious execution of Order 0.
25.Husband hereby elects and the Ninth Respondent hereby acknowledges that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b). If this election is not effective for any reason, the Husband must otherwise separately make an election in accordance with the BB Trust ESS (simultaneously with making the cancellation request under Order 23) that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b).
26.The Ninth Respondent must, within 30 days of/as soon as practicable upon receiving the cancellation request in Order 0, cancel the Share Units the subject of the cancellation request under Order 23 and pay the distribution under clause 14 up to a maximum of the CCH ESS Settlement Sum to the Wife's Account as the nominee of the Husband and any balance in excess of the CCH ESS Settlement Sum to the Husband.
27.For the purposes of Order 25, the Ninth Respondent agrees to first meet the Cancellation Entitlement, (or so much of the Cancellation Entitlement) from available moneys in the Trust Fund in accordance with clause 14.2(b). If the Trust Funds are insufficient to pay the Cancellation Entitlement in full, the Ninth Respondent must do all things reasonably required under the Constitution of BB Ltd and the BB Trust ESS to affect a transfer of the Allocated Shares pursuant to clause 14.2(a) and exercise any other power available to it arising from the request made under Order 23 to ensure the payment of the balance of the Cancellation Entitlement as contemplated under Order 26.
28.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 0 to 28.
29.If for any reason the distribution to the Wife under Order 25 is less than the CCH ESS Settlement Sum, including without limitation by reason of repayment of loans or fluctuations in the market value of the Allocated Share, the Husband and Ninth Respondent must repeat Orders O to 29 until the total amount paid to the Wife under Order 25 is equal to the BB Trust ESS Settlement Sum or the Husband has requested the cancellation of all of his Share Units, whichever is first to occur.
Note: Capitalised terms in Orders 30 to 35 have the same meaning as in the Shareholders Agreement of BB Ltd (BB Ltd Shareholders' Agreement) and unless indicated otherwise, references to clauses are to clauses in the BB Ltd Shareholder's Agreement.
30.The Husband do all things and sign all documents as soon as practicable following receipt of notice under Order 8 to affect a sale of Shares in accordance with clause 13 of the BB Ltd Shareholders' Agreement and the Constitution so that the price received under clause 13.14 after deducting any costs will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife at the date that the Husband and the Tenth Respondent received the notice under Order 9, under one or more of the other Ancillary Orders (BB Ltd Settlement Sum).
31.The Tenth Respondent must do all things and sign all documents as soon as practicable to facilitate the sale of Shares under Order 30.
32.The Husband must direct payment of any price received for the Shares pursuant to Order 30 up to a maximum of the BB Ltd Settlement Sum to the Wife's Account as the nominee of the Husband and pay any balance in excess of the BB Ltd Settlement Sum to the Husband.
33.If the sale of Shares pursuant to Order 30 is carried out in accordance with these Orders and otherwise in accordance with the BB Ltd Shareholders' Agreement and the Constitution, the Tenth Respondent must register the transfer of such Shares under the Constitution.
34.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 30 to 34.
35.If for any reason the payments to the Wife under Order 31 is less than the BB Ltd Settlement Sum, the Husband and Tenth Respondent must repeat Orders 30 to 34 until the total amount paid to the Wife under Order 31 is equal to the BB Ltd Settlement Sum or the Husband's Shares have been fully sold, whichever is first to occur.
Note: Capitalised terms in Orders 36 to 43 have the same meaning as in the Constitution of K Pty Ltd (K Pty Ltd Constitution) whether or not those terms are capitalised or separately defined, and unless indicated otherwise, references to clauses are to clauses in the K Pty Ltd Constitution.
36.Within 10 business days of the Husband and the Eleventh Respondent receiving a notice under Order 8, the Husband and the Eleventh Respondent must do all things required, including to seek all required shareholder approvals, under the Corporations Act to effect a selective share buyback of such number of the Husband's shares in the Eleventh Respondent, at fair market value, that the Eleventh Respondent has the capacity to buy back (having regard to the requirements of the Corporations Act) so that the price payable for the shares by the Eleventh Respondent after deducting any costs will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife under one or more of the other Ancillary Orders at the date that the Husband and the Eleventh Respondent received the notice under Order 9 (K Pty Ltd Settlement Sum).
37.The Husband and the Eleventh Respondent must ensure that completion of the share buyback transaction contemplated in Order 36 occurs as soon as is practicable, subject to compliance with the requirements of the Corporations Act. On completion of the share buyback transaction contemplated in Order 36 the Eleventh Respondent must make payment of the purchase price for the Husband's shares to the Wife's Account as the nominee of the Husband and must pay any balance in excess of the K Pty Ltd Settlement Sum to the Husband.
38.lf the share buyback transaction contemplated under Orders 36 and 37 does not, for any reason, result in any payment to the Wife or a payment to the Wife that is less than the K Pty Ltd Settlement Sum, the Husband must as soon as practicable and in any event within 10 business days, offer his remaining Shares for sale to the other shareholders of the Company, for fair market value, and use his best endeavours to complete a sale of such number of Shares within 30 business days so that the total price payable for the Shares is no less than the K Pty Ltd Settlement Sum (after deducting any amounts received under Orders 36 and 37). The Husband must procure that the purchase price paid on any sale of his Shares under this Order 38 is made to the Wife's Account.
39.If the Husband is unable to complete a sale of a sufficient number of his Shares to the other shareholders of the Eleventh Respondent under Order 38, so that the total paid for the sale of the Husband's Shares under Orders 36 and 38 is no less than the K Pty Ltd Settlement Sum, the Husband must make enquiries of the Eleventh Respondent as to whether any employee of the Eleventh Respondent or other person or entity would be prepared to acquire the Husband’s shares in the Eleventh Respondent and, subject to the balance of this Order 39, the Husband must use his best endeavours to procure a sale to any such interested third parties on terms no more favourable than those offered to the existing shareholders of the Eleventh Respondent under Order 38. The Husband must use his best endeavours to complete a sale of such number of his Shares under this Order 39 within 30 business days of acceptance of any offers from third party buyers so that the total price payable for the Shares (after deducting amounts received pursuant to Orders 36 and 39, if any) is no less than the K Pty Ltd Settlement Sum.
40.A sale of the Husband Shares under Orders 36, 38 and/or 39 may be completed at a purchase price that is less than fair market value with the prior written consent of the Wife.
41.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 36 to 40.
42.If the sale of Shares pursuant to Order 36, 38 and/or 39 are carried out in accordance with these Orders and otherwise in accordance with the K Pty Ltd Constitution, the Eleventh Respondent must register the transfer of such Shares under the Constitution.
43.lf for any reason the payment to the Wife under Orders 36 to 40 is less than the K Pty Ltd Settlement Sum, the Husband and Eleventh Respondent must repeat Orders 36 to 42 until the total amount paid to the Wife under Orders 36 to 42 is equal to the K Pty Ltd Settlement Sum or the Husband's Shares have been fully sold, whichever is first to occur.
Note: Capitalised terms in Orders 44 to 50 have the same meaning as in the K Pty Ltd Employee Equity Trust Deed (K Pty Ltd ESS) and unless indicated otherwise, references to clauses are to clauses in the K Pty Ltd ESS.
44.The Husband must within 5 business days of receipt of notice under Order 8, make a request under clause 12.l(c) to the Twelfth Respondent in the form required under the K Pty Ltd ESS (including without limitation, clause 12.2) for the cancellation of so many of the Share Units held by the Husband so that the distribution under clause 14, after deducting any loans repayable on cancellation under the K Pty Ltd ESS, will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife at the date that the Husband and the Twelfth Respondent received the notice under Order 9, under one or more of the other Ancillary Orders (K Pty Ltd ESS Settlement Sum).
45.To facilitate the Husband's compliance with Order 0, the Twelfth Respondent must within 2 business days of receipt of notice under Order 8 provide the Husband with a statement of the current market value of a Share Unit, the amount outstanding on any loans made to the Husband for the purposes of acquiring his Share Units, the Twelfth Respondent's prescribed form of cancellation request, whether there is sufficient funds in the Trust Funds to meet the cancellation request under clause 14.2(b) and such other relevant information to facilitate the expeditious execution of Order 0.
46.The Husband hereby elects and the Twelfth Respondent hereby accepts that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b). If this election is not effective for any reason, the Husband must otherwise separately make an election in accordance with the K Pty Ltd ESS (simultaneously with making the cancellation request under Order 44) that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b).
47.The Twelfth Respondent must, within 30 days of/as soon as practicable upon receiving the cancellation request in Order 0, cancel the number of Share Units the subject of the request made under Order 43 and pay the distribution under clause 14 up to a maximum of the K Pty Ltd ESS Settlement Sum to the Wife's Account as the nominee of the Husband and thereafter any balance to the Husband.
48.For the purposes of Order 46, the Twelfth Respondent agrees to first meet the Cancellation Entitlement, (or so much of the Cancellation Entitlement) from available moneys in the Trust Fund in accordance with clause 14.2(b). If the Trust Funds are insufficient to pay the Cancellation Entitlement in full, the Twelfth Respondent must comply with all relevant requirements under the Constitution of K Pty Ltd and the K Pty Ltd ESS to affect a transfer of the Allocated Shares pursuant to clause 14.2(a) and exercise any other power available to it arising from the request made under Order 43 to ensure the payment of the balance of the Cancellation Entitlement as contemplated under Order 46.
49.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 0 to 49.
50.If for any reason the distribution to the Wife under Order 46 is less than the K Pty Ltd ESS Settlement Sum, including without limitation by reason of repayment of loans or fluctuations in the market value of the Allocated Share, the Husband and Twelfth Respondent must repeat Orders O to 49 until the total amount paid to the Wife under Order 46 is equal to the K Pty Ltd ESS Settlement Sum or the Husband has requested the cancellation of all of his Share Units, whichever is first to occur.
Note: Capitalised terms in Orders 51 to 58 have the same meaning as in the Constitution of G Pty Ltd (G Pty Ltd Constitution) whether or not those terms are capitalised or separately defined, and unless indicated otherwise, references to clauses are to clauses in the G Pty Ltd Constitution.
51.Within 10 business days of the Husband and the Thirteenth Respondent receiving a notice under Order 8, the Husband and the Thirteenth Respondent must do all things required, including to seek all required shareholder approvals, under the Corporations Act to effect a selective share buyback of such number of the Husband's shares in the Thirteenth Respondent, at fair market value, that the Thirteenth Respondent has the capacity to buy back (having regard to the requirements of the Corporations Act) so that the price payable for the shares by the Thirteenth Respondent after deducting any costs will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife under one or more of the other Ancillary Orders at the date that the Husband and the Thirteenth Respondent received the notice under Order 9 (G Pty Ltd Settlement Sum).
52.The Husband and the Thirteenth Respondent must ensure that completion of the share buyback transaction contemplated in Order 51 occurs as soon as is practicable, subject to compliance with the requirements of the Corporations Act. On completion of the share buyback transaction contemplated in Order 51 the Thirteenth Respondent must make payment of the purchase price for the Husband's shares to the Wife's Account as the nominee of the Husband and must pay any balance in excess of the G Pty Ltd Settlement Sum to the Husband.
53.If the share buyback transaction contemplated under Orders 5 l and 52 does not, for any reason, result in any payment to the Wife or a payment to the Wife that is less than the G Pty Ltd Settlement Sum, the Husband must as soon as practicable and in any event within 10 business days, offer his remaining Shares for sale to the other shareholders of the Company, for fair market value, and use his best endeavours to complete a sale of such number of Shares within 30 business days so that the total price payable for the Shares is no less than the G Pty Ltd Settlement Sum (after deducting any amounts received under Orders 51 and 52). The Husband must procure that the purchase price paid on any sale of his Shares under this Order 53 is made to the Wife's Account.
54.lf the Husband is unable to complete a sale of a sufficient number of his Shares to the other shareholders of the Thirteenth Respondent under Order 53, so that the total paid for the sale of the Husband's Shares under Orders 51 and 53 is no less than the G Pty Ltd Settlement Sum, the Husband must make enquiries of the Thirteenth Respondent as to whether any employee of the Thirteenth Respondent or other person or entity would be prepared to acquire the Husband's shares in the Thirteenth Respondent and, subject to the balance of this Order 54, the Husband must use his best endeavours to procure a sale to any such interested third parties on terms no more favourable than those offered to the existing shareholders of the Thirteenth Respondent under Order 53. The Husband must use his best endeavours to complete a sale of such number of his Shares under this Order 54 within 30 business days of acceptance of any offers from third party buyers so that the total price payable for the Shares (after deducting amounts received pursuant to Orders 51 and 53, if any) is no less than the G Pty Ltd Settlement Sum.
55.A sale of the Husband Shares under Orders 51, 53 and/or 54 may be completed at a purchase price that is less than fair market value with the prior written consent of the Wife.
56.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 51 to 55.
57.If the sale of Shares pursuant to Order 51, 53 and/or 54 are carried out in accordance with these Orders and otherwise in accordance with the G Pty Ltd Constitution, the Thirteenth Respondent must register the transfer of such Shares under the Constitution.
58.If for any reason the payment to the Wife under Orders 51 to 57 is less than the G Pty Ltd Settlement Sum, the Husband and Thirteenth Respondent must repeat Orders 51 to 57 until the total amount paid to the Wife under Orders 51 to 57 is equal to the G Pty Ltd Settlement Sum or the Husband's Shares have been fully sold, whichever is first to occur.
Note: Capitalised terms in Orders 59 to 64 have the same meaning as in the Shareholder's Agreement of J Pty Ltd (J Pty Ltd Shareholder's Agreement) and unless indicated otherwise, references to clauses are to clauses in the PPA Shareholder's Agreement.
59.The Husband must do all things and sign all documents as soon as practicable following receipt of notice under Order 8 to affect a sale of Shares in accordance with clause 13 of the J Pty Ltd Shareholder's Agreement and the Constitution so that the price received under clause 13.14 after deducting any costs will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife at the date that the Husband and the Fourteenth Respondent received the notice under Order 9, under one or more of the other Ancillary Orders (J Pty Ltd Settlement Sum).
60.The Fourteenth Respondent do all things and sign all documents as soon as practicable to facilitate the sale in Order 59.
61.The Husband must direct payment of any price received for the Shares pursuant to Order 59 up to a maximum of the PPA Settlement Sum to the Wife's Account as the nominee of the Husband and and pay any balance in excess of the J Pty Ltd Settlement Sum to the Husband.
62.If the sale of Shares pursuant to Order 59 is carried out in accordance with these Orders and otherwise in accordance with the J Pty Ltd Shareholders' Agreement and the Constitution, the Fourteenth Respondent must register the transfer of such Shares under the Constitution.
63.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 59 to 63.
64.If for any reason the payments to the Wife under Order 60 is less than the J Pty Ltd Settlement Sum, the Husband and Fourteenth Respondent must repeat Orders 59 to 63 until the total amount paid to the Wife under Order 60 is equal to the J Pty Ltd Settlement Sum or the Husband's Shares have been fully sold, whichever is first to occur.
Note: Capitalised terms in Orders 65 to 71 have the same meaning as in the DD Trust Deed (DD Pty Ltd ESS) and unless indicated otherwise, references to clauses are to clauses in the DD Pty Ltd ESS.
65.The Husband must within 5 business days of receipt of notice under Order 8, make a request under clause 12.l(c) to the Fifteenth Respondent in the form required under the DD Pty Ltd ESS (including without limitation, clause 12.2) for the cancellation of so many of the Share Units held by the Husband so that the distribution under clause 14, after deducting any loans repayable on cancellation under the DD Pty Ltd ESS, will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife at the date that the Husband and the Fifteenth Respondent received the notice under Order 9, under one or more of the other Ancillary Orders (DD Pty Ltd ESS Settlement Sum).
66.To facilitate the Husband's compliance with Order 65, Fifteenth Respondent must within [2 business days] of receipt of notice under Order 8 provide the Husband with a statement of the current market value of a Share Unit, the amount outstanding on any loans made to the Husband for the purposes of acquiring his Share Units, the Fifteenth Respondent's prescribed form of cancellation request, whether there is sufficient funds in the Trust Funds to meet the cancellation request under clause 14.2(b) and such other relevant information to facilitate the expeditious execution of Order 65.
67.Husband hereby elects and the Fifteenth Respondent hereby accepts that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b). If this election is not effective for any reason, the Husband must otherwise separately make an election in accordance with the DD Pty Ltd ESS (simultaneously with making the cancellation request under Order 65) that the Cancellation Entitlement is to be paid as a cash payment under clause 13.1(b).
68.The Fifteenth Respondent must, within 30 days of/as soon as practicable upon receiving the cancellation request in Order 65, cancel the Share Units the subject of the cancellation request and pay the distribution under clause 14 up to a maximum of the DD Pty Ltd Settlement Sum to the Wife's Account as the nominee of the Husband and any balance in excess of the DD Pty Ltd Settlement Sum to the Husband.
69.For the purposes of Order 67, the Fifteenth Respondent agrees to first meet the Cancellation Entitlement, (or so much of the Cancellation Entitlement) from available moneys in the Trust Fund in accordance with clause 14.2(b). If the Trust Funds are insufficient to pay the Cancellation Entitlement in full, the Fifteenth Respondent must do all things reasonably required under the Constitution and Shareholders' Agreement of DD Pty Ltd and the DD Pty Ltd ESS to affect a transfer of the Allocated Shares pursuant to clause l4.2(a) and exercise any other power available to it arising from the request made under Order 65 to ensure the payment of the balance of the Cancellation Entitlement as contemplated under Order 68.
70.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 65 to 70.
71.If for any reason the distribution to the Wife under Order67 is less than the DD Pty Ltd ESS Settlement Sum, including without limitation by reason of repayment of loans or fluctuations in the market value of the Allocated Share, the Husband and Fifteenth Respondent must repeat Orders 65 to 70 until the total amount paid to the Wife under Order 67 is equal to the DD Pty Ltd ESS Settlement Sum or the Husband has requested the cancellation of all of his Share Units, whichever is first to occur.
Note: Capitalised terms in Orders 72 to 79 have the same meaning as in the Constitution of H Pty Ltd (H Pty Ltd Constitution) and unless indicated otherwise, references to clauses are to clauses in the H Pty Ltd Constitution.
72.Within 10 business days of the Husband and the Sixteenth Respondent receiving a notice under Order 8, the Husband and the Sixteenth Respondent must do all things required, including to seek all required shareholder approvals, under the Corporations Act to effect a selective share buyback of such number of the Husband's shares in the Sixteenth Respondent, at fair market value, that the Sixteenth Respondent has the capacity to buy back (having regard to the requirements of the Corporations Act) so that the price payable for the shares by the Sixteenth Respondent after deducting any costs will be no less than the Shortfall Amount after deducting any amounts actually received by the Wife under one or more of the other Ancillary Orders at the date that the Husband and the Sixteenth Respondent received the notice under Order 9 (H Pty Ltd Settlement Sum).
73.The Husband and the Sixteenth Respondent must ensure that completion of the share buyback transaction contemplated in Order 72 occurs as soon as is practicable, subject to compliance with the requirements of the Corporations Act. On completion of the share buyback transaction contemplated in Order 72 the Sixteenth Respondent must make payment of the purchase price for the Husband's shares to the Wife's Account as the nominee of the Husband and must pay any balance in excess of the H Pty Ltd Settlement Sum to the Husband.
74.If the share buyback transaction contemplated under Orders 72 and 73 does not, for any reason, result in any payment to the Wife or a payment to the Wife that is less than the H Pty Ltd Settlement Sum, the Husband must as soon as practicable and in any event within 10 business days, offer his remaining Shares for sale to the other shareholders of the Sixteenth Respondent, for fair market value, and use his best endeavours to complete a sale of such number of Shares within 30 business days so that the total price payable for the Shares is no less than the H Pty Ltd Settlement Sum (after deducting any amounts received under Orders 72 and 73). The Husband must procure that the purchase price paid on any sale of his Shares under this Order 74 is made to the Wife's Account.
75.If the Husband is unable to complete a sale of a sufficient number of his Shares to the other shareholders of the Sixteenth Respondent under Order 74, so that the total paid for the sale of the Husband's Shares under Orders 72 and 74 is no less than the H Pty Ltd Settlement Sum, the Husband must make enquiries of the Sixteenth Respondent as to whether any employee of the Sixteenth Respondent or other person or entity would be prepared to acquire the Husband's shares in the Sixteenth Respondent and, subject to the balance of this Order 75, the Husband must use his best endeavours to procure a sale to any such interested third parties on terms no more favourable than those offered to the existing shareholders of the Sixteenth Respondent under Order 74. The Husband must use his best endeavours to complete a sale of such number of his Shares under this Order 75 within 30 business days of acceptance of any offers from third party buyers so that the total price payable for the Shares (after deducting amounts received pursuant to Orders 72 and 74, if any) is no less than the H Pty Ltd Settlement Sum.
76.A sale of the Husband Shares under Orders 72, 74 and/or 75 may be completed at a purchase price that is less than fair market value with the prior written consent of the Wife.
77.The Husband is liable for all costs and taxes arising out of or in connection with the effectuation of Orders 72 to 75.
78.If the sale of Shares pursuant to Order 72, 74 and/or 75 are carried out in accordance with these Orders and otherwise in accordance with the H Pty Ltd Constitution, the Sixteenth Respondent must register the transfer of such Shares under the Constitution.
79.If for any reason the payment to the Wife under Orders 72 to 75 is less than the H Pty Ltd Settlement Sum, the Husband and Sixteenth Respondent must repeat Orders 72 to 78 until the total amount paid to the Wife under Orders 72 to 78 is equal to the H Pty Ltd Settlement Sum or the Husband's Shares have been fully sold, whichever is first to occur.
80.If the total paid to the Wife under the preceding Orders is less than the Settlement Sum, any balance remains as a debt due and payable to the Wife.
81.Interest shall accrue on the balance of the Settlement Sum not paid to the Wife within 20 business days in accordance with the Federal Circuit and Family Court of Australia Rules.
82.That in the event of default, the Husband grants the Wife an unconditional, irrevocable power as the Husband's attorney to do all things and sign all documents as the Husband's to give effect to the foregoing Orders.
83.Separate and independent from the power of attorney granted in Order 81, that a registrar of the court is authorised to do all things, sign all deeds and instruments in the preceding Orders on behalf of the Husband in accordance with section I 06A of the Family Law Act 1975 (Cth).
84.The Husband is restrained from dealing with any equity or security (including without limitation any share or share unit) the subject of any of the foregoing Orders other than in accordance with these Orders or with the prior written consent of the Wife.
85.The Husband is restrained from resigning from his employment with any company the subject of the foregoing Orders within 12 months from the date of these Orders.
86.Liberty to apply on 7 days' notice in writing.
Default Sale of JJ Street, Suburb KK NSW
87.In the event of default of the preceding Orders, to the extent that a balance of the Settlement Sum is owing to the Wife, within 20 business days of such default the Husband shall forthwith do all acts and things and sign all documents necessary to cause the property at JJ Street, Suburb KK NSW to be sold forthwith for the best price reasonably obtainable on such terms as agreed with the Wife and failing agreement as ordered by the Court, and the net proceeds of sale after costs of sale and discharge of all loans secured by way of mortgage or charge against the title, shall be distributed:-
(a)to the Wife, an amount equal to the balance owing of the Settlement Sum together with interest calculated pursuant to the Federal Circuit and Family Court of Australia Rules; and
(b)the balance to the Husband (if any).
88.That pending the settlement of the sale of the Suburb KK the Husband be restrained by way of injunction from further incumbering and/or increasing the indebtedness against the Suburb LL Property.
Transfer of HH Street, Suburb M NSW
89.That within 28 days of the date of these Orders the Husband shall do all acts and things and sign all documents necessary to transfer to the Wife unencumbered the property situate at HH Street, Suburb M NSW ("the Suburb M Property").
90.That simultaneous with Order 89, the Husband shall do all acts and things and sign all documents necessary to discharge and/or refinance the mortgage secured against the Suburb M Property into his sole name and shall indemnify and forever keep indemnified the Wife.
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